Case Name: Kristine Vasilevskis, et al. v. City of San Jose, et al.
Case No.: 2014-1-CV-264132

Currently before the Court is the motion by defendants Hargreaves Associates, Inc. (“Hargreaves Associates”) and Mary Margaret Jones (“Jones”) (collectively, “Hargreaves Defendants”) for summary judgment of the first amended complaint (“FAC”) of plaintiffs Kristine Vasilevskis (“Kristine”) and Eduard Vasilevskis (“Eduard”) (collectively, “Plaintiffs”).

Factual and Procedural Background

This is a personal injury action. Plaintiffs filed their original complaint against defendants City of San Jose (the “City”) and Doe defendants 1-100 on April 22, 2014. Subsequently, on April 1, 2016, Plaintiffs filed a Doe Amendment, substituting Hargreaves Associates and Jones for Doe 1 and Doe 2, respectively.

On November 10, 2016, Plaintiffs filed the operative first amended complaint (“FAC”) against the City and the Hargreaves Defendants (collectively, “Defendants”), alleging causes of action for: (1) general negligence (by Plaintiffs against Defendants); (2) premises liability (by Plaintiffs against Defendants); (3) loss of consortium (by Eduard against Defendants); and (4) professional negligence (by Plaintiffs against the Hargreaves Defendants).

According to the allegations of the FAC, on July 25, 2013, Kristine fell into a “concealed void” in the “tile and/or glass cube” walking surface that covered the water fountain area in Plaza de Cesar Chavez (the “Plaza”), which is located at 170 S. Market Street, San Jose, California. (FAC, ¶¶ Prem. L-1(1) and (3), and PN-1(1).) When she fell into the void, Kristine severely cut her leg on “the broken tile and/or glass cube.” (Id. at ¶ Prem. L-1(3).) Plaintiffs allege that Defendants unreasonably and carelessly allowed a defective and dangerous condition to develop and exist at the Plaza in an area where Kristine, and other guests, had no alternative but to walk over and/or upon the dangerous walking surface. (Id. at ¶¶ GN-1(7) and Prem. L-1(1), (3)-(4).) “[T]he broken and jagged tile and/or glass cube [allegedly] exposed individuals … to the hazards associated with walking on [the] tiled and/or glass cubed area that covers the base of the water fountains at [the Plaza].” (Ibid.)

Plaintiffs further allege that Defendants unreasonably and carelessly owned, leased, maintained, inspected, repaired, constructed, and/or permitted the implementation and/or insertion of “broken and jagged tiles and/or glass cube,” or “badly designed tile and/or glass cube[,] into the surface that covers the base of the water fountains,” and “otherwise controlled the area where the hazardous condition was located.” (FAC, ¶¶ GN-1(6) and Prem. L-1(2).) Defendants knew, or should have known, that the broken and jagged tile and/or glass cube created a hazard and dangerous condition, and regular inspections, maintenance, and updates were required to keep the area safe and the surface flush and smooth. (Id. at ¶¶ GN-1(7) and Prem. L-1(3).) They also knew that, “in order to provide a safe walking surface, said tiled and/or glass cubed surfaces necessitated the removal of broken and jagged tile and/or glass cube, and the selection of tile or other material that will not crack, break, or fall apart and will remain flush, even, and smooth to prevent a walking hazard ….” (Ibid.) In the alternative, Defendants “knew, or should have known, that alternative tiles and/or glass cubes, or other materials, were available and utilized by other entities” in public water fountains, and those materials “created an [sic] safe walking surface which is easier to maintain and/or repair.” (Ibid.) Defendants had “active or constructive notice of the existence of the dangerous condition … created by the placement of the tiles at [the Plaza]” (id. at ¶ Prem. L-1(4)), but failed and refused to replace or repair the tiled and/or glass cubed area, provide warnings, or take other protective measures (id. at ¶ Prem. L-1(3)-(4)).

Plaintiffs also allege that “said public entities[ ] unreasonably and/or carelessly[ ] built, constructed, inspected, installed, repaired, applied material to, implemented, and/or improved, inspected, and/or otherwise regulated work performed at said locations, prior to [the] accident, and/or placed, installed and/or created the tiled and/or glass cubed area using a design that resulted in, and allowed, pedestrians to fall into a void, and, therefore, created, and/or knew of the creation of said dangerous and/or said defective condition.” (FAC, ¶¶ Prem. L-1(6) and PN-1(5).)

Finally, Plaintiffs allege that the Hargreaves Defendants “negligently, unreasonably and carelessly designed a defective walking surface thereby creating a concealed dangerous condition to exist on said property.” (FAC, ¶ PN-1(1).) They also “negligently, unreasonably and carelessly designed, inspected, constructed, permitted the implementation, and/or installation of a defectively designed walking surface that covers the base of the water fountains ….” (Id. at ¶ PN-1(2).) The “defectively designed walking surface exposed individuals … to the hazards associated with walking over the area that covers the base of the water fountains at [the Plaza].” (Id. at ¶ PN-1(1).) “[T]he design of the walking surface was defective for its intended use and created a dangerous condition, but appeared to be safe because it was flush, even, … and smooth.” (Id. at ¶ PN-1(3).) “The appearance of a safe walking surface allowed a pedestrian, like [Kristine] to reasonably believe it was safe, but the concealed defect allowed plaintiff to fall into a void beneath the fountains and severely cutting [sic] her leg on broken tile and/or glass cube.” (Ibid.) The Hargreaves Defendants “knew that the walking surfaces [sic] was a concealed danger and the type of danger that ordinary consumers like plaintiff would not find to be dangerous upon inspection.” (Ibid.) They also “knew, or should have known, that alternative materials were available and utilized by other designers for safety and durability.” (Ibid.)

As a result of Defendants’ negligence, the “broken and jagged tile and/or glass cube,” and “the defective design of the walking surface …,” Plaintiffs suffered injuries. (FAC, ¶¶ GN-1(8), Prem. L-1(7), and PN-1(6).)

On September 8, 2017, the Hargreaves Defendants filed the instant motion for summary judgment of the FAC. Plaintiffs filed papers in opposition to the motion on November 22, 2017. On December 1, 2017, the Hargreaves Defendants filed a reply.

Discussion

The Hargreaves Defendants move for summary judgment of the FAC on the grounds that: they did not own or control the Plaza; Plaintiffs cannot establish duty or breach; the claims are time-barred by the statute of limitations set forth in Code of Civil Procedure section 337.1; and the claims are barred by the “completed and accepted” doctrine. (Ntc. Mtn., p. 1:24-2:11.)

I. Evidentiary Objections

A. Plaintiffs’ Objections

In connection with their opposition papers, Plaintiffs filed evidentiary objections to portions of Jones’ declaration and Kristine’s discovery responses, which are offered in support of the Hargreaves Defendants’ motion for summary judgment.

As a preliminary matter, Plaintiffs’ evidentiary objections do not comply with California Rules of Court, rule 3.1354. Rather than submit two separate documents as required by the rule—one setting forth the objections and another setting forth a proposed order—Plaintiffs submitted a single packet of objections signed by counsel, with blanks apparently for the Court to indicate its rulings, but with no place for the Court to sign. (See Cal. Rules of Ct., rule 3.1354(b) [a party must provide written objections that comply with one of the formats described in the rule] (c) [a party must provide a proposed order that complies with one of the formats described in the rule].) This hybrid document does not comply with California Rule of Court, rule 3.1354. Trial courts are not required to rule on objections that do not comply with California Rules of Court, rule 3.1354. (See Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal.App.4th 633, 642 [trial courts only have duty to rule on evidentiary objections presented in proper format]; see also Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 8 [trial court is not required to rule on objections that do not comply with California Rules of Court, rule 3.1354 and is not required to give objecting party a second chance at filing properly formatted papers].) Nonetheless, the Court will overlook the defect and consider the merits of the objections because the formatting error does not impair its ability to address the merits of the objections.

Turning to the merits of Plaintiffs’ objections, Objection Nos. 1 and 2 on the grounds of lack of foundation and inadmissible oral testimony regarding the content of a writing are overruled.

Next, although Objection No. 3 on the ground of hearsay is generally well-taken (see Evid. Code, § 1200), even if the subject statement was excluded from evidence, it would have no effect on the outcome of the motion. Plaintiffs did not object to virtually identical evidence contained elsewhere in Kristine’s discovery responses. (See Berta Dec., Ex. D, Kristine’s Responses to Special Interrogatories, Set One (“SI”), pp. 5:27-6:2 [“As [Kristine] was waiting for the ambulance to arrive, people who routinely use the park fountain stated that the tile had been broken for a while. One man mentioned that he had made several phone calls to the city stating that the tile was broken and needed to be fixed.”] and 7:2-5 [“Plaintiffs believe that people at the park had made phone calls alerting the city to the danger of this broken tile. This is a public park that looked to be otherwise clean and orderly. A public serviceman must have helped to clean this area and should have noticed this broken tile.”].) Consequently, no ruling is required on Objection No. 3. (See Code Civ. Proc., § 437c, subd. (q) [“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.”].)

B. The Hargreaves Defendants’ Objections

With their reply papers, the Hargreaves Defendants filed evidentiary objections. Because the Hargreaves Defendants do not meet their initial burden on summary judgment, for the reasons set forth below, their objections to Plaintiffs’ evidence are not material to the disposition of the motion. Accordingly, no ruling is required on the Hargreaves Defendants’ evidentiary objections. (See Code Civ. Proc., § 437c, subd. (q) [“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.”].)

II. Legal Standard on Motions for Summary Judgment

The pleadings limit the issues presented for summary judgment and such a motion may not be granted or denied based on issues not raised by the pleadings. (See Government Employees Ins. Co. v. Super. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 [“the pleadings determine the scope of relevant issues on a summary judgment motion”].)

A motion for summary judgment must dispose of the entire action. (Code Civ. Proc., § 437c, subd. (a).) “Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. Once the defendant has met that burden, the burden shifts to the plaintiff ‘to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.’ ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ ” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272, internal citations omitted.)

For purposes of establishing their respective burdens, the parties involved in a motion for summary judgment must present admissible evidence. (Saporta v. Barbagelata (1963) 220 Cal.App.2d 463, 468.) Additionally, in ruling on the motion, a court cannot weigh said evidence or deny summary judgment on the ground that any particular evidence lacks credibility. (See Melorich Builders v. Super. Ct. (1984) 160 Cal.App.3d 931, 935; see also Lerner v. Super. Ct. (1977) 70 Cal.App.3d 656, 660.) As summary judgment “is a drastic remedy eliminating trial,” the court must liberally construe evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party. (See Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389; see also Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 717-718.)

III. Merits of the Motion

To prevail on their motion for summary judgment the Hargreaves Defendants must demonstrate that there is no triable issue of material fact with respect to each and every cause of action alleged in the FAC. Upon review of the parties’ arguments and evidence, the Court finds that the Hargreaves Defendants have not met their initial burden on summary judgment because they fail to establish that there is no triable issue of material fact with respect to Plaintiffs’ claim for professional negligence.

The Hargreaves Defendants do not meet their initial burden as to fourth cause of action for professional negligence because they fail to conclusively identify the alleged design defects that form the basis of the claim. The Hargreaves Defendants assert that “[t]he alleged defect of which Plaintiffs complain is the presence of a broken glass brick in a walkway, which [Kristine] stepped through, cutting her leg.” (Mem. Ps. & As., pp. 5:12-13 and p. 9:26-27 [“As alleged in [the] FAC, Plaintiffs take issue with the existence of a ‘broken and jagged tile and/or glass cube’ in the walking surface of the Plaza’s interactive fountain.”].) They contend that, “[a]s the foundation of their design defect claim, Plaintiffs take issue with the use of the glass brick in the design.” (Id., p. 5:13-14.) They further contend that “Plaintiffs admit that the use of the glass brick in the design was not defective but for its broken condition.” (Id. at pp. 5:17-18 and 11:1-4.)

However, the Hargreaves Defendants do not present evidence demonstrating that the alleged design defect is, in fact, the broken condition of the glass brick and/or the mere use of glass brick, in general, in the design. As is relevant here, UMF No. 25 states that “[t]he design of the walkway is not defective but for the presence of a broken glass brick.” The supporting evidence cited in the Hargreaves Defendants’ separate statement is paragraphs GN-1(7) and Prem.L-1(3) of the FAC, and Kristine’s response to SI No. 3. Paragraphs GN-1(7) and Prem.L-1(3) simply do not state that the design defects, as alleged by Plaintiffs, are the broken condition of the glass brick and/or the mere use of glass brick, in general, in the design. Instead, those paragraphs set forth allegations relating to Plaintiffs’ claims for general negligence and premises liability. In addition, Kristine’s response to SI No. 3 does not state that the design defects, as alleged by Plaintiffs, are the broken condition of the glass brick and/or the mere use of glass brick, in general, in the design. SI No. 3 asked Kristine to state all facts supporting her contention in paragraph GN-1(7) of the FAC that the defendants knew, or should have known, that alternative materials were available that would have made the surface safe to walk on and easier to maintain or repair. (Berta Dec., Ex. D, pp. 3:25-4:1.) In her response, Kristine states: “An alternative material would have been a glass tile that was not broken. The glass tiles when kept in good condition seemed to be safe. When they are broken they become very dangerous.” (Id. at p. 4:4-6.) This response does not establish that Plaintiffs allege that the design of the walkway was only defective due to the presence of a broken glass brick.

Notably, the fourth cause of action itself does not clearly articulate the nature of the alleged design defects. (See FAC, ¶¶ PN-1(1)-(6).) Rather, the fourth cause of action simply states that the walking surface was defectively designed. (See ibid.)

The Hargreaves Defendants’ failure to conclusively identify the alleged design defects that form the basis of Plaintiffs’ professional negligence claim is fatal to their motion for summary judgment because their moving papers do not address the alleged design defects that Plaintiffs assert underlie their claim for professional negligence. In their opposition papers, Plaintiffs contend that the design of the Plaza was defective because the Hargreaves Defendants failed to (1) use laminated glass and (2) provide any safety guidelines regarding the maintenance of the walking surface, specifically the replacement of the neoprene cushion. These purported design defects are not addressed, in any way, in the Hargreaves Defendants’ moving papers.

For example, the Hargreaves Defendants do not provide any argument or analysis about whether the failure to use laminated glass and provide safety guidelines regarding the replacement of the neoprene cushion constitute latent or patent defects. Instead, the Hargreaves Defendants’ arguments and evidence focus on what is arguably the manifestation of these alleged defects—the broken and jagged glass tile. (See e.g., UMF No. 28 [“According to Plaintiffs, the ‘exercise of reasonable care’, ‘regular inspection’ and ‘routine inspection’ would have disclosed the broken condition of the specific brick at issue.”], italics added; see also Mem. Ps. & As., p. 13:8-20.) This is particularly important because “if a reasonable inspection would reveal only the manifestation of a defect but not its cause, i.e., the defect itself, then the defect is not necessarily patent.” (Geertz v. Ausonio (1992) 4 Cal.App.4th 1363, 1368–69 [the alleged construction defect, the lack of an overflow drainage system for an outdoor deck that occurred when leaves accumulated in the deck’s drain, was not a patent defect as the flooding was “at most a manifestation” of a latent construction defect, i.e., the absence of a secondary drainage system]; see Baker v. Walker & Walker, Inc. (1982) 133 Cal.App.3d 746, 762 [alleged defect in a building in the heating and air-conditioning systems was latent because, over the course of 14 years, no one could pinpoint the cause of severe temperature fluctuations upon a reasonable inspection]; see also Mills, supra, 108 Cal.App.4th at pp. 645-46 [“The Mills alleged Wunder installed the siding incorrectly by failing to first sheath the house or put down a vapor barrier, or to install clips or expansion joints. This was the construction deficiency. As a consequence, allegedly, the siding absorbed moisture in wet weather and expanded, causing it to buckle, warp, and separate, the nails to pop out, and the paint to peel off. These were all manifestations of the deficiency. The absence of an adequate vapor barrier was a latent defect, hidden from view beneath the siding. … The subsequent buckling, warping, and peeling were obvious, of course. However, they did not turn a latent defect into a patent one; they simply put the Mills on notice at some point that something was wrong with the siding, and that a further inquiry was necessary.”].) The Hargreaves Defendants do not present any UMF or evidence indicating that the alleged causes of the broken and jagged glass brick—the failure to use laminated glass and the failure to provide safety maintenance guidelines regarding the replacement of the neoprene cushion—would have been discovered upon a reasonable inspection.

Given the deficiencies in the Hargreaves Defendants’ moving papers identified above, the Hargreaves Defendants fail to meet their initial burden. Consequently, they are not entitled to summary judgment of the FAC and the motion is DENIED.